Warrantless domestic spying

The Fed AG Gonzalez tried to argue the warrantless domestic spying program was authorized by Congress, but the general 9/11 force authorization does not control the specific FISA spying statute in the views of most legal scholars. The US Supreme court will decide in a year or two. Meanwhile Americans who worry about terrorists will support Bush because they don't care about civil liberties enough.

In Limelight at Wiretap Hearing: 2 Laws, but Which Should Rule? By ADAM LIPTAKIt is the sort of problem that judges confront every day. One law forbids a certain activity. The other may allow it. Which one counts?

Attorney General Alberto R. Gonzales made the case to the Senate Judiciary Committee yesterday that two potentially contradictory Congressional actions – one a 1978 law forbidding domestic surveillance without a court's permission, the other a 2001 resolution giving the president authority to use force to combat Al Qaeda – together mean that the executive branch is free to decide on its own to spy on communications between people in the United States and those abroad.

Under the ordinary rules that courts use to harmonize potentially conflicting laws, the more specific one typically governs. Here, that would seem to be the 1978 law, the Foreign Intelligence Surveillance Act, or FISA, which created an elaborate legal scheme to regulate wiretaps, as well as a secret court that promptly hears warrant applications.

If a later law means to override or amend an earlier one, moreover, courts generally require it to say so specifically. The 2001 resolution authorized the president "to use all necessary and appropriate force against those nations, organizations or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on Sept. 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States."

Whether the 2001 resolution created an exception to the 1978 law depends on whether "necessary and appropriate force" includes surveillance of the enemy. Neither detentions nor surveillance was mentioned in the resolution. The Bush administration says both are natural incidents of the use of force in wartime.

In 2004, the Supreme Court ruled that the resolution encompassed the detention of an American citizen captured on a foreign battlefield in a conventional war. But critics say spying on communications involving people in the United States is very different from detaining an enemy combatant.

Last month the Supreme Court confronted a broadly similar situation. The administration argued that a general federal statute, the Controlled Substances Act, gave the attorney general authority to override a specific Oregon law, the Death With Dignity Act. The court rejected that argument, saying the federal law did not specifically grant such authority. Congress, the court said, "does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions – it does not, one might say, hide elephants in mouse holes."

Under that reasoning, the authorization for force to head off terrorism may be too general to override the 1978 law.

Mr. Gonzales acknowledged yesterday that at least some members of Congress did not realize they were voting for a surveillance program when they voted for the force resolution.

"But we are a nation governed by written laws," Mr. Gonzales said, "not the unwritten intentions of individuals. What matters is the plain meaning of the statute passed by Congress and signed by the president. And in this case, those plain words could not be clearer."

"This authorization is not a wiretap statute," Mr. Leahy said. "We know what the wiretap statute looks like. This is not it."

Senator Lindsey Graham, Republican of South Carolina, said he "never envisioned that I was giving to this president or any other president the ability to go around FISA carte blanche."

"In all honesty," Mr. Graham told Mr. Gonzales, "this statutory-force-resolution argument that you're making is very dangerous in terms of its application for the future." An expansive reading of the 2001 resolution, Mr. Graham said, may make it "harder for the next president to get a force resolution if we take this too far."

Mr. Gonzales maintained yesterday that the two enactments "complement each other."

Mr. Gonzales conceded that his was not the only possible way to harmonize the two Congressional actions. But the administration's reading is, Mr. Gonzales said, "fairly possible." Given that, he continued, the Constitution requires deference to the executive branch's interpretation under a doctrine known as constitutional avoidance, which counsels against reading statutes in a way that creates constitutional conflict when another reasonable interpretation is available.

In a letter to Congress last week, a group of 14 constitutional scholars and former government officials said that "FISA is not ambiguous on this subject, and therefore the constitutional avoidance doctrine does not apply."

The administration has a fallback position, but it was not one Mr. Gonzales discussed much yesterday. Even if the force authorization did nothing to alter the restrictions set out in the 1978 law, he said, the president's constitutional authority as commander in chief may by itself allow the surveillance program.

The senators questioning Mr. Gonzales often appeared frustrated and skeptical. That was due in some degree to the fact that many of them had taken part in enacting at least one of the two measures. But it was also a reaction to Mr. Gonzales's apparent position that neither Congress nor the courts had a role to play in clarifying any ambiguity.

Mr. Specter urged the administration to present the surveillance program to the FISA court "lock, stock and barrel."

Mr. Gonzales did not provide a direct answer. He did say that in the case of some individual warrant applications, the administration did not believe it could move quickly enough to satisfy the 1978 law, though he acknowledged that the law allows applications to be filed up to 72 hours after the surveillance has started.

Mr. Gonzales also clarified again a statement he made on Dec. 19, a few days after the spying program was disclosed by The New York Times. At the time, he said the administration had not sought an amendment to the 1978 law because "certain members of Congress" had "advised that that would be difficult, if not impossible." Since then Mr. Gonzales has said the real problem is that such legislation could not be enacted without compromising the program.

I guess what you are trying to say is that you would rather have privacy than security?We have to be secure to protect our civil liberities sir, or are you prepared to get out your prayer rug and face Mecca?I may be wrong but you havent to any terrorist operatives in the past few years, so chances are big brother has nothing on you..oh and from what I have read good old Clinton was listening too..hard to belive no one knew about that..same way its hard to belive that Clintonn dropped the ball the first time the towers were attacked.:::steps down from soap box::: have a nice day

In typical Liberal, Hate-Everything-Bush-Does fashion, you and your accomplices in the media are intentionally mischaracterizing what's going on.There is NO "warrentless domestic spying" unless you're talking about the Clinton Administration's Echelon Program that DID spy on MILLIONS of domestic calls and e-mails and even conducted warrentless PHYSICAL searches. A program that then Deputy Att'y General Jamie Gorelick (of 9/11 Commission fame) DEFENDED as allowed be "the inherent authority granted the President by the Constitution".What Bush authorized is electronic surveilence of INTERNATIONAL - NOT DOMESTIC - communications between KNOWN AL QUEDA MEMBERS and affiliated organizations.Where Clinton's DOMESTIC SPYING program listened in on and documented millions of communications and conducted tens of thousands of physical searches, the current NSA program, as reported by the Washington Post, has intercepetd five THOUSAND contacts.Also, please note that the FISA Court Review Board has also issued an opinion that the President DOES HAVE this authority, independent of FISA proceedings, as has other Federal Appeals Courts.Every President, including Washington, Lincoln, Wilson, FDR (one of your heroes, I'm sure), Johnson, Carter, and Clinton, have asserted AND USED the same "inherent authority". And only Carter and Clinton asserted that authority during peacetime.

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The purpose of FISA is to allow secret court approval of domestic wiretapping. The warrant can be obtained in 15 minutes. apparently only 4 times since 1978 have warrant requests been denied. Warrants can be obtained 72 hours after the wiretap is done in emergency circumstances. the chief judge quit after it was disclosed Bush Admin ignored this court. What is so hard to comply with...?

Lets just elect Bush king as he does not care about Congress or laws and does whatever he likes. Or maybe emperor for life, worked great for Julius Caesar! too bad the right wingers know nothing about history and could not care less what a "check and balance" refers to...

Speaking of wiretaps, anyone mention that the wiretaps used on Dr. and Coretta King were authorized by Bobby Kennedy?

Thank you, Prez Carter, for using Mrs. King's funeral as a political opportunity to try to embarass Prez Bush; you managed to embarass mostly yourself by being so blatantly inappropriate.

And more to the point - if you are calling Al Qaeda members, I don't think you have any reasonable expectation of privacy. That is all that is required under normal civil law, so why should it be any easier on enemy combatants?

Hey red, this is from December and from Insight Magazine. You know, the right wing magazine published by the Washington Times. Not the Washington Post, the Washington Times:

Wiretaps fail to make dent in terror war; al Qaeda used messengers

The Bush administration's surveillance policy has failed to make a dent in the war against al Qaeda.

U.S. law enforcement sources said that more than four years of surveillance by the National Security Agency has failed to capture any high-level al Qaeda operative in the United States. They said al Qaeda insurgents have long stopped using the phones and even computers to relay messages. Instead, they employ couriers.

"They have been way ahead of us in communications security," a law enforcement source said. "At most, we have caught some riff-raff. But the heavies remain free and we believe some of them are in the United States."

Several members of Congress have been briefed on the effectiveness of the government surveillance program that does not require a court order.

Senate Judiciary Committee Chairman Arlen Specter, Pennsylvania Republican, who was briefed by Attorney General Alberto Gonzales on the matter, said he plans to hold hearings on the program by February 2006.

"There may be legislation which will come out of it [hearings] to restrict the president's power," Mr. Specter said.

The law enforcement sources said the intelligence community has identified several al Qaeda agents believed to be in the United States. But the sources said the agents have not been found because of insufficient intelligence and even poor analysis.

The assertions by the law enforcement sources dispute President Bush's claim that the government surveillance program has significantly helped in the fight against terrorism. The president said the program, which goes beyond the 1978 Foreign Intelligence Surveillance Act, limits eavesdropping to international phone calls.

The sources provided guidelines to how the administration has employed the surveillance program. They said the National Security Agency in cooperation with the FBI was allowed to monitor the telephone calls and e-mails of any American believed to be in contact with a person abroad suspected of being linked to al Qaeda or other terrorist groups.

At that point, the sources said, all of the communications of that American would be monitored, including calls made to others in the United States. The regulations under the administration's surveillance program do not require any court order.

"The new regulations don't require this because it is considered an ongoing investigation," a source familiar with the program said.

The sources said the Patriot Act was based on the assessment that al Qaeda had established cells in Muslim communities in the United States.

Documents obtained by the American Civil Liberties Union confirm that the FBI has monitored and infiltrated a range of Muslim and Arab groups, including the Washington-based American-Arab Anti-Discrimination Committee.

But despite the huge amount of raw material gathered under the legislation, the FBI has not captured one major al Qaeda operative in the United States. Instead, federal authorities have been allowed to use non-terrorist material obtained through the surveillance program for investigation and prosecution.

In more than one case, the sources said, a surveillance target was prosecuted on non-terrorist charges from information obtained through wiretaps conducted without a court order. They said the FBI supported this policy in an attempt to pressure surveillance targets to cooperate.

"The problem is not the legislation but lack of intelligence and analysis," another source said. "We have a huge pile of intercepts that never get translated, analyzed and thus remain of no use to us. If it [surveillance] was effective, that's one thing. But it hasn't been effective."

Now, the Rev. Moon's conservative rag is pointing out that spying has been done on communications within the country, something Gonzales is saying they didn't do. It hasn't lead to the capture of even one Al Qaeda member. The one person who has been arrested wasn't even arrested on terrorism charges and they neglect to tell us what the verdict was. Things aren't even being translated. Yeah, the domestic spying is really working. But no matter what, it's still illegal.

So Satyr, did you read this? Calls WITHIN THIS COUNTRY have been under surveillance. American to American calls. For someone who claims to be a Libertarian, you sure do come off as a right wingnut with no powers of rational thinking. Unless you consider believing EVERYTHING Fox News tells you to be rational thinking.

In our mind the issue isn't about spying per se. If the wiretaps had been authorized by the FISA court. But it wasn't, and so far we've heard exactly zero justification for bypassing the court. The "too slow and cumbersome" argument seems pretty weak when the Act allowed for retroactive review and approval of surveillence.

The issues are these:

1) Shall a president, of whatever power, have the "right" to operate unchecked by any other branch of government?

Before you say yes, think carefully. Would you give this power to Nixon? Or to Hillary? Even if you think Bush is a "great" president, what about the next one? Or the next?

2) Why didn't the president seek the approval of the FISA court and secure warrants for its activities.

If you set aside the "slow and cumbersome" argument, the only rational reason for bypassing the FISA court is that the court would NOT have approved the program. Our kids use this strategy. And that leaves us with the conclusion that the administration knew that its program might not pass judicial review. Better to not ask.

And that scares us. There's absolutely no chance that any terrorist group could destroy the essential fabric of a free society, which is founded upon the concepts of checks and balances; not to mention the rule of law. But allowing an unfettered executive to rein unchecked?

The intercepts are ones that have to originate with a known Al Queda mamber, or affiliate. If that call/e-mail goes to an American citizen, he's no "ordinary American".And foreign terrorists planning destruction in America can hardly claim "an expectation of privacy".

MiaaAnn> If that's true, then why is the Washington POST (a Left-wing paper), not the Times, reporting with outrage that there have been 5,000 intercepts?Calls, citizen to citizen have ben monitored WITHOUT WARRENTS by THE CLINTON ADMINISTRATION using its "Echelon" program that allowed not just warrentless phone & e-mail intercepts, but warrentless PHYSICAL SEARCHES too.... What's more invasive????????????????

Libertarians, such as myself, believe that the only ligitimate reason for ANY government, is the protection of the rights of its citizens.Primary is the right to LIFE, which they must defend by any means available.Al Queda members should not get the protections of our Constitution. And anyone who sides with them, including citizens, abdicates those rights and protections.And don't wave the ACLU (American Communist Liberal Union) around... They are the most corrupt, Anti-American organization here. The only rights they want protected are the rights to liberalism, the right to destroy conservatives, and the right to tolerate only people who agree with them.If I had a chioce of a "news" organization to listen to, it wouldn't be "Air Anti-America" or PBS (Pure Bull Shit), or CNN, the Communist News Network. If those are the alters at which you worship, it explains much about you.

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BTW, In case you haven't kept up with the REAL news, Jane Harmon, the ranking DEMOCRAT on the House Intelligence committee - one of the "Big Eight" who HAVE been constantly briefed and updated on the program - is in FULL SUPPORT of the program and says it's LEGAL and VITAL and the people who leaked the program did irreperable damage to this country's abilily to protect itself...

Pleasing women in unbelievable ways for 45 years...You could be next...

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